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The police tactic of using the stop and search powers contained within Section 44 of the Terrorism Act 2000 against peace protesters and photographers and the odd tourist has taken a battering in a crucial ruling by the European Court of Human Rights.

David Wilkie | Tue, 19 Jan. 2010 at 16:12

The provisions of the Terrorism Act 2000 authorise police officers to stop and search anyone in a designated area without the need for reasonable suspicion for such actions. Many of you will think that this a sensible provision given the terrorist threat. Now, however, such stops have reached epidemic proportions and some 256,000 stops were made in the year 2008/2009. There were, by comparison, some 33,177 stops in 2004. Under the policy, it has been alleged that the police are abusing the power in order to gain some advantage in terms of what this may show statistically. Has anyone stopped to think what effect this may have in terms of any real terrorist threat?

Did any one inside or outside of Parliament really expect such powers to be used in such an indiscriminate way? We are, after all, talking about individual freedoms and rights of expression and protest. Section 44 of the Terrorism Act 2000 is about looking for articles which may be used in connection with terrorism and this ruling raises the question of whether it is sufficient justification to stop individuals just because they are present and protesting and taking pictures. Is that the reason why the legislation was passed?

Lord Carlile, the Liberal Democrat peer and QC, spoke out about the wrongful use of Section 44 of the Terrorism Act 2000 as long ago as June 2009 in his annual report on anti-terror laws.

Lord Carlile, the government's watchdog and independent reviewer of anti-terrorism laws, challenged the correctness of cases where suspects were stopped by officers even though there was no evidence against them. Lord Carlile warned that police were wasting public resources by carrying out "self-evidently unmerited searches" which were an invasion of civil liberties and "almost certainly unlawful".

Where was Alan Johnson, the Home Secretary, when Lord Carlile pointed out and went to great pains to say: "I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop. In one situation the basis of the stops was numerical only, which is almost certainly unlawful and in no way an intelligent use of the procedure. I believe it is totally wrong for any person to be stopped in order to produce a racial balance in the Section 44 statistics. There is ample anecdotal evidence this is happening. I can well understand the concerns of the police that they should be free from allegations of prejudice, but it is not a good use of precious resources if they waste them on self-evidently unmerited searches. It is also an invasion of the civil liberties of the person who has been stopped, simply to 'balance' the statistics. The criteria for section 44 stops should be objectively based, irrespective of racial considerations: if an objective basis happens to produce an ethnic imbalance, that may have to be regarded as a proportional consequence of operational policing."

The European Court of Human Rights (ECHR) sitting in Strasbourg has ruled that it was unlawful for police to use the powers, under Section 44 of the Terrorism Act 2000, to stop and search people as at the present the law does not need any grounds for suspicion. The ruling states that not only the use of the counter-terror powers is found wanting, but also the way they were authorised or sanctioned left a lot to be desired in that they were "neither sufficiently circumscribed, nor subject to adequate legal safeguards against abuse".

The case was brought to the ECHR by Kevin Gillan and Pennie Quinton. The pair were stopped by police while on their way to a demonstration outside the annual arms fair at London's Docklands, in September 2003.

As part of the stop and search Quinton, a journalist, was ordered to stop filming the protest. This was despite the fact that she showed her press card, which is usually enough to establish that the holder is a member of the press. In the case of Gillan, who was riding his bicycle, he was only allowed to go on his way after 20 minutes. An award of €33,850 (£30,400) in costs and expenses was made. It is quite possible that other challenges could be made alleging abuse under the stop and search measures.

The ruling issued last week is quite critical of the police policy. In particular the ECHR were clear in their view that the power to search a person's clothing and belongings in public included an element of humiliation and embarrassment and amounted to a clear interference with the right to privacy. The judges were also critical of the finding that there is no requirement that the powers be considered "necessary" –only "expedient".

The ECHR were also damning of the practice of continuous renewal sought by way of confirmation from the Home Secretary.

The European court also said there was no real check on authorisations by parliament or the courts.

Probably, most embarrassingly, bearing in mind the pains to which Parliament has gone to in approving comprehensive Codes of Practice under the Police and Criminal Evidence Act 1984 was the ECHR's finding that stop and search under Section 44 of the Terrorist Act 2000 was "based exclusively on the 'hunch' or 'professional intuition' of the police officer".

M/s Quinton has been reported as saying she was delighted with the judgement, adding: "There has to be a balance between private life and security. The court has shown that section 44 is an invasion of people's right to liberty and privacy. Hopefully the government will have to put a fairer law in place to protect us."

Liberty who supported the parties were equally forthright indicating that "Liberty has consistently warned the government about the dangers of stop and search without suspicion and actively campaigned for the tightening up of the infamous section 44 power. The public, police and court of human rights all share our concerns for privacy, protest, race equality and community solidarity that come with this sloppy law. In the coming weeks parliamentarians must finally sort out this mess".

Let's hope the Home Secretary will be big enough to admit that its not enough to say that the Home Office is disappointed with the ruling!